Union of India Represented by Secretary Vs P.V. Velayudhan

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OP (CAT) NO. 192 OF 2024

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR

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WEDNESDAY, THE 19TH DAY OF MARCH 2025 / 28TH PHALGUNA, 1946

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OP (CAT) NO. 192 OF 2024

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AGAINST THE ORDER DATED 24.04.2024 IN O.A. NO.198 OF 2022

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OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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PETITIONER(S)/RESPONDENTS:

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1UNION OF INDIA REPRESENTED BY SECRETARY
MINISTRY OF MSME,
UDYOG BHAVAN,
NEW DELHI, PIN - 110001

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2THE ADDL. SECRETARY & DEVELOPMENT COMMISSIONER
MINISTRY OF MICRO, SMALL & MEDIUM ENTERPRISES,
NIRMAN BHAVAN,
NEW DELHI, PIN - 110001

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3THE DY. DIRECTOR,
O/O. THE DEVELOPMENT COMMISSIONER,
MINISTRY OF MICRO, SMALL & MEDIUM ENTERPRISES,
NIRMAN BHAVAN,
NEW DELHI, PIN - 110001

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SRI T C KRISHNA DSGI IN CHARGE

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RESPONDENT(S)/APPLICANT IN THE O.A:

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P.V. VELAYUDHAN
AGED 61 YEARS,
S/O. LATE KAMMARAN JOINT DIRECTOR,
(RETIRED) MSME DEVELOPMENT INSTITUTE HUBLIHAS,
580 009, RESIDING AT "AISHWARYAM",
KANDANKALI PAYYANUR,
KANNUR, PIN - 670307

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BY ADVS.

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OP (CAT) NO. 192 OF 2024

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SHAFIK M.A
GIRIJA P.(K/52/2006)
AADERSH R.S. PANICKER(K/1255/2021)

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON
19.03.2025, THE COURT ON THE SAME DAY DELIVERED THE

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FOLLOWING:

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OP (CAT) NO. 192 OF 2024

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JUDGMENT

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AMIT RAWAL, J.

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The short question involved in this case is,

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in the absence of the provisions in the service rules what method and mode has to be adopted by the employer when an employee has faced enquiry conducted by the Internal Complaints Committee on account of a complaint by women colleague of sexual harassment. Owing to the judgment in Vishaka and Ors. v. State of Rajasthan and Ors. [AIR 1997 SC 3011], Central Government came out with an Act called Sexual harassment of women at work place (prevention, prohibition and redressal) Act, 2013. Chapter V deals with the inquiry into the complaint; Section 12 deals with action during the pendency of the inquiry; section 13 regarding the inquiry report and section 14 regarding punishment for false or malicious complaint and false evidence. As far as present case is concerned, only provisions of Section 13 of the Act has to be taken into consideration. The same reads as under:

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OP (CAT) NO. 192 OF 2024

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13. Inquiry report .—(1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties. (2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.

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(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be—

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(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;

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(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:

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Provide that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved

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woman:

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Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or as, the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

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(4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.

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Rule 14 of the CCS (Classification, Control

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and Appeal) Rules was inserted with a proviso with effect

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from 01.07.2004. The same reads as under:

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14. PROCEDURE FOR IMPOSING MAJOR PENALTIES:

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(1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.

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(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.

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Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil

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Services (Conduct) Rules, 1964, the complaints Committee established in each ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the inquiry into the complaints of sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules.”

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In the present case, respondent had faced

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the inquiry conducted by the Internal Complaints Committee on the basis of the compliant by the women and as per the inquiry report, was indicted. Section 13 extracted above of sexual harassment Act do not envisage any power of punishment to the ICC Committee except for recommendation, whereas proviso to Rule 14 also is in tandem with Section 13. In the absence of any service Rules, the remedy for the employer is to straight away issue show cause notice by supplying the copy of the report as to why a minor or major punishme nt be not taken.

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In the instant case, though the respondent

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employee was served with a charge sheet which was

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withdrawn and thereafter served with a fresh charge sheet in January 2023 after a period of one(1) year and nine(9) months and was challenged before the Tribunal. The Tribunal on the basis of the material on record, quashed the charge sheet with the observation that there is no impediment in release of retirement benefits to the applicant within ninety(90) da ys for the reason that Section 13 of the Act provides that action on the inquiry of the ICC has to be undertaken within a period of six(6) months.

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Sri.T.C.Krishna, Deputy Solicitor General in Charge submitted that the findings of the Tribunal are wholly erroneous, for, it cannot take away the right of the employer to initiate the action of imposition of either major or minor penalty. The remedy was to serve the charge sheet though it was belated. But the fact remains even if the charge sheet is not contemplated in the rules, the employer is not denuded of any power with regard to the imposition of the punishment. Therefore, the release of the benefits could not have been ordered.

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On the other hand, Sri.M.A.Shafeek, learned

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counsel appearing on behalf of the respondent submitted that the judgment of the Tribunal is perfectly legal and justified and referred to paragraph Nos.20 and 21, which are extracted hereinbelow:

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“ 20 . But the showing of the parties indicates that such an enquiry was conducted inviting parties through tele-hearing. The report appended to Annexure-A1 clearly suggests that, after taking cognizance of the complaint, a meeting was convened under the chairmanship of the Joint Development Commissioner, Ms.Mandeep Kaur along with the constituted members of the committee on 12.02.2019 wherein both the parties, the defacto complainant Smt.Anusha and the applicant were invited for tele-hearing. The report further indicates that they had also acted upon the representation of some group of ladies of MSME, Thrissur, whose details are not available.

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21 . Suffice it to say that the enquiry proceedings initiated by the committee headed by Smt. Mandeep Kaur did not conform to the procedure laid down in Rule 14 of the CCS(CCA) Rules. It is not even clear as to whether such a committee was constituted in terms of Section 4 of the Act. It had collected evidence through tele-hearing. There is no material to say that provisions of the Act were followed in letter and spirit. The copy of the complaint was not given to the applicant in advance nor his comments were sought. Worsening the case of the respondents the

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applicant was not given opportunity to cross examine the witnesses.”

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We have heard the learned counsel for the

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parties and appraised the paper book and of the view that there is merit and force in the argument of Sri.T.C.Krishna, for, in the absence of Rules, the employer is not denuded of any power to initiate action, either major or minor punishment provided under the punishment and appeal rules. Delinquent employee has been indicted by the ICC for the reason that the respondent – employer has not challenged the report of the Internal Complaint Committee in the aforementioned O.A. even if there were certain short comings according to the argumen t Sri.M.A.Shafeek. On plain perusal of provision of Section 13 of the Act produced above, the inquiry of the Internal Complaint Committee has to be undertaken within six(6) months whereas the charge sheet was served after one(1) year nine(9) months. Of course it was belated, but that would not create any impediment or take away the powers of the employer.

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In this view of the matter, we thus allow the present O.P. by upholding the order quashment of charge sheet but modifying the subsequent order that so long so the department/employer/the punishment authority does not complete the process of punishment intended to be contemplated to be imposed on receipt of report of ICC, the retirement benefits ordered to be released in favour of respondent - applicant will be kept in abeyance. Let this exercise be undertaken within a reasonable period but not later than four(4) months.

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Sd/-

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AMIT RAWAL, JUDGE

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Sd/-

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K. V. JAYAKUMAR, JUDGE

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nak

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OP (CAT) NO. 192 OF 2024

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APPENDIX OF OP (CAT) 192/2024

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PETITIONER ANNEXURES

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Annexure A1TRUE COPY OF THE REPORT DATED 31.012019
OF THE INTERNAL COMPLAINTS COMMITTEE,
THRISSUR
Annexure A2TRUE COPY OF THE LETTER NO. F NO.
2(01)/JDC(MK)/ WOMEN CELL/2019 DATED
16.04.2019 OF THE OFFICE OF THE 2ND
RESPONDENT.
Annexure A3TRUE COPY OF THE LETTER DATED 18.4.2019
SUBMITTED BY THE APPLICANT.
Annexure A4TRUE COPY OF THE ORDER NO. A-
22012/1/2018-A(P&T) (PT.) DATED
8.4.2019 ISSUED BY THE 3RD RESPONDENT.
Annexure A5TRUE COPY OF THE CHARGE MEMO NO. (E-
16285) NO. HR- 01021/1/2020-A(P&T)
DATED 17.9.2020 ISSUED BY 2ND
RESPONDENT.
Annexure A6TRUE COPY OF THE STATEMENT OF DEFENSE
DATED 24.9.2020 SUBMITTED BY THE
APPLICANT.
Annexure A7TRUE COPY OF THE LETTER. NO. A-
38011/9/2021-A(P&T) DATED 8.6.2021
ISSUED BY THE 3RD RESPONDENT.
Annexure A8TRUE COPY OF THE REPRESENTATION DATED
4.10.2021 SUBMITTED BY THE APPLICANT.
Annexure A9TRUE COPY OF THE REPRESENTATION DATED
25.2.2022 SUBMITTED BY THE APPLICANT.
Annexure A10TRUE COPY OF THE OM NO. 12(9)/2020-P &
PW(C)-6450 DATED 23.2.2022 ISSUED BY
THE DEPARTMENT OF PENSIONS AND
PENSIONERS WELFARE.

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`Annexure MA1`	`TRUE COPY OF THE CHARGE MEMO NO. HR-` `01021/1/2020-A(P&T) (E-16285) DATED` `17.09.2020`
`Annexure MA -2`	`TRUE COPY OF THE CHARGE MEMO NO. HR-` `01021/1/2020- A(P&T) (E-18030) DATED` `04.01.2023 AND TRUE COPY OF OFFICE` `ORDER DATED 04.01.2023 FOR WITHDRAWAL` `OF EARLIER CHARGE MEMO AT ANNEXURE A-1`
`Annexure MA -3`	`RULE 8(4)(C) OF THE CCS (PENSION)` `RULES, 2021 (RELEVANT EXTRACTION)`
`Annexure MA-4`	`RULE 4 OF CENTRAL CIVIL SERVICES` `(COMMUTATION OF PENSION) RULES, 1981` `(RELEVANT EXTRACTION)`
`Annexure MA - 5`	`TRUE COPY OF THE DETAILS OF PAYMENTS` `MADE TO SHRI P. V. VELAYUDHAN, EX-JOINT` `DIRECTOR SINCE HIS RETIREMENT ON` `31.05.2021.`
`Annexure MA 6`	`TRUE COPY OF THE ORDER NO. A-` `32011/9/2021- A(P&T) DATED 27.07.2023` `FOR LEAVE ENCASHMENT`
`Exhibit P1`	`TRUE COPY OF THE O.A. NO.` `180/00198/2022 FILED BY THE RESPONDENTS` `BEFORE THE HON’BLE CAT ERNAKULAM BENCH`
`Exhibit P2`	`TRUE COPY OF THE REPLY STATEMENT FILED` `BY THE PETITIONERS HEREIN BEFORE THE` `CAT, ERNAKULAM BENCH IN OA NO.` `180/00198/2022`
`Exhibit P3`	`A TRUE COPY OF THE REJOINDER FILED BY` `THE RESPONDENT HEREIN BEFORE THE CAT` `ERNAKULAM BENCH IN OA NO.` `180/00198/2022`
`Exhibit P4`	`A TRUE COPY OF MA NO. 180/0091/2023 IN` `OA NO. 180/198/2022 FILED BY THE` `RESPONDENT BEFORE THE CAT, ERNAKULAM`

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BENCH

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Exhibit P5A TRUE COPY OF THE ORDER DATED
14.07.2023 OF THE HON’BLE CAT,
ERNAKULAM BENCH IN OA NO. 180/198/2022
Exhibit P6A TRUE COPY OF MA NO. 180/671/2023 IN
OA NO. 180/198/2022 FILED BEFORE THE
HON’BLE CAT ERNAKULAM BENCH
Exhibit P7A TRUE COPY OF THE COMMON ORDER DATED
24.04.2024 IN OA NO. 180/00198/2022 AND
CONNECTED CASE

Union of India Represented by Secretary v. P.V. Velayudhan

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Union of India Represented by Secretary v. P.V. Velayudhan

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